Mrs Maryanne Tuyau v Westpac Banking Corporation
[2025] FWC 222
•29 JANUARY 2025
| [2025] FWC 222 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Maryanne Tuyau
v
Westpac Banking Corporation
(U2024/9611)
| COMMISSIONER TRAN | MELBOURNE, 29 JANUARY 2025 |
Application for an unfair dismissal remedy – Jurisdictional Objection – Genuine redundancy – Objection upheld - Application dismissed – Considered whether dismissal harsh, unjust or unreasonable – Valid reason for dismissal – Procedural fairness – Redeployment offered.
This is a decision about whether the termination of Mrs Maryanne Tuyau’s employment by Westpac Banking Corporation was a genuine redundancy within the meaning of s 389 of the Fair Work Act 2009 (Cth). Mrs Tuyau’s employment began on 3 August 2009 and ended on 16 August 2024.
Mrs Tuyau applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Act on 18 August 2024, within the statutory time period required. If a dismissal is a genuine redundancy as defined in s 389, then it is not an unfair dismissal under s 385 of the Act. I find that Westpac’s dismissal of Mrs Tuyau was a genuine redundancy. My reasons follow.
The proceedings
Both parties filed material, including submissions, witness statements and documentary evidence. I conducted a hearing via Teams on Tuesday 12 November 2024.
Mrs Tuyau gave evidence on her own behalf.
The following people gave evidence on behalf of Westpac:
· Mr Scott Whitford, Regional General Manager – Melbourne Outer South East Victoria;
· Ms Ashley Carre, Human Resources Partner; and
· Mr Michael de Zilwa, Branch Manager, Westpac Pakenham Branch.
During the case management conference for this matter, Mrs Tuyau said that she wanted to call Ms Melissa Parkin, Bank of Melbourne Pakenham Branch Manager and asked about the process for doing so. Westpac indicated that they intended to call Ms Parkin. I informed Mrs Tuyau about the Commission’s power to order attendances under s 590 of the Act but also indicated that where the respondent intended to call the same witness whom Mrs Tuyau wished to question, I was of the view that it was not necessary to order attendance. But Westpac did not call Ms Parkin and due to the timetable of materials, Mrs Tuyau did not learn this until shortly before the hearing.
At the commencement of the hearing, I discussed with Mrs Tuyau her options about calling Ms Parkin and that calling Ms Parkin would necessitate an adjournment. Mrs Tuyau decided not to press for an order to attend. While this may have felt to Mrs Tuyau as a disadvantage, there was no significant factual disputes between the parties. The evidence that Ms Parkin could give was also given by Mr Whitford and Mrs Tuyau herself.
After the hearing, I gave Westpac the opportunity to file an email that Ms Carre had referred to during her evidence. I also gave Mrs Tuyau an opportunity to make any submissions about the email. Further submissions were made by both parties and Mrs Tuyau also provided additional evidence.
Westpac also brought to my attention the decision of Commissioner Hunt in a matter in which Westpac applied under s 120 to reduce the redundancy pay of Ms Samantha Dibden when the St George branch in Cairns where she worked was permanently closed.[1] Commissioner Hunt exercised her discretion to reduce the redundancy payment to Ms Dibden to nil on the grounds that Westpac had obtained other acceptable employment for Ms Dibden and that Westpac had acted appropriately in discussing roles with her.
Westpac also made a separate application under s 120 to vary redundancy pay that it owed to Mrs Tuyau and another employee. That application was allocated to Deputy President Bell. That application was dealt with by Deputy President Bell. At the time of the hearing, the application had not been finalised. On 21 November 2024, Deputy President Bell ordered that the redundancy payment that would have otherwise been payable by Westpac to Mrs Tuyau under s 119 of the Act be reduced to nil.[2] Reasons were given in transcript.
I am of the view that the matters relating to s 120 (variation of redundancy pay) are not relevant to an application for an unfair dismissal remedy as the relevant legal tests are different.
Westpac asked that I not accept Mrs Tuyau’s further submissions where they were not responsive to Westpac’s further submissions (being the email from Ms Carre referred to during her evidence and notification and in relation to Commissioner Hunt’s decision). The additional evidence related to Mr Whitford congratulating other employees on work anniversaries and another employee’s resignation letter. The evidence is not relevant to this matter and filed after the hearing, so I will not accept it. Mrs Tuyau’s further submissions mostly elaborate on her submissions made during the hearing and I accept them only on that basis. I am of the view that Westpac had the opportunity during the hearing to address the matters raised by Mrs Tuyau in her further submissions, other than in relation to the additional evidence, which I do not accept.
Background
Mrs Tuyau commenced employment with Westpac Group on 3 August 2009. She was initially employed with St George Bank at Fountain Gate. She was employed in various roles, including as a Customer Service Officer, Customer Service Specialist and Branch Manager Delegate. Mrs Tuyau has been employed on full-time and part-time bases.
Westpac acquired St George Bank in March 2010. Bank of Melbourne is also part of Westpac Group.
In her most recent position with Westpac, Mrs Tuyau was employed as part time Customer Service Officer at Bank of Melbourne Pakenham, working a total of 30 hours per week. Mrs Tuyau’s recollection is that she has held this role from around April 2018; Ms Ashley Carre, Human Resources Partner says that Mrs Tuyau has been employed in Bank of Melbourne Pakenham since 2015. Mrs Tuyau’s most recent contract of employment is dated 18 August 2015. It is not necessary to resolve the date that Mrs Tuyau started her most recent role. What is relevant is that Mrs Tuyau has been employed with Westpac Group for 15 years and was in her most recent role for more than 5 years.
Mrs Tuyau lives in Cowes, Victoria. Mrs Tuyau says it is a total of 170km to and from her home to the Bank of Melbourne Pakenham branch.
An enterprise agreement applies to Mrs Tuyau’s employment – the Westpac Group Enterprise Agreement 2023. This agreement was approved on 9 December 2022 and commenced operation from 1 January 2023. The nominal expiry date of the Agreement is 31 December 2024.
Westpac says that in early 2024, it made the decision to permanently close the Bank of Melbourne Pakenham branch. The closure was to take effect on 16 August 2024.
On 18 April 2024, Mr Scott Whitford, Bank of Melbourne Regional General Manager, attended the Bank of Melbourne Pakenham branch and announced its closure during a staff meeting. Mrs Tuyau was present at this meeting.
Mrs Tuyau, along with other staff members, received a Branch Employee Consultation Booklet, which detailed the decision to close the branch, provided the proposed timeline for doing so, and included information about support for customers and employees.
On 15 May 2024, Mrs Tuyau received an email that had the subject line, ‘Preferences.’ This email was sent by Mr Whitford to an email group labelled ‘Pakenham Branch.’ Mrs Tuyau says she received the email from Ms Melissa Parkin, Pakenham Branch Manager.
The email said:
“Hi Team,
When looking for placements over the next couple of months I may be in a position to make other region moves to accommodate personal preferences.
With this in mind can you each send me your top 2 branch preferences.
I cant guarantee but will try to place you in your preferences.
Thank you”
On 16 May 2024, Mrs Tuyau replied:
“Good Afternoon Scott,
In regards to the below email given my current circumstances, as well the branch locations. If I am to be completely honest my preference would be a redundancy package.”
There then followed an exchange of email between Mr Whitford and Mrs Tuyau on the same day. Mr Whitford replied that there would be no redundancy as there were comparable roles. Mrs Tuyau asked what comparable roles were available, to which Mr Whitford replied,
“We have the exact same role as you are currently performing at WBC [Westpac Banking Corporation]. In fact I see the experience you would bring to WBC branch as a massive bonus for the branch.”
Mrs Tuyau then asked Mr Whitford “to expand on what my options for location would be in relation to a branch?”
On 21 May 2024, Mr Whitford replied to ask if she would be interested in a role at Westpac Wonthaggi and referred to her saving 20-30 minutes travel to that branch.
On 22 May 2025, Mrs Tuyau replied:
“Good Afternoon Scott,
Before we discuss anything further I would like more information about the significant effects of the re-structure and re-location as a consequence of the BOM Pakenham branch closure and how this will impact myself.
I would also like details of my current role and job description with BOM alongside the details of what would be my new proposed role and job description with WBC with the expectations, so I can look over these and gain a better understanding and be more informed.”
Mr Whitford replied to say that the branch would close and cease to trade at the date of the closure and Mrs Tuyau would be “offered a comparable role within Westpac Group” at the time of the closure or before. He then referred to the Performance Framework Library where Mrs Tuyau could find all the role descriptions. He also provided the Bank of Melbourne Customer Service Officer role and Westpac Teller role from that library as part of his email. Mr Michael de Zilwa, Branch Manager of the Pakenham Branch of Westpac, gave evidence that the Bank of Melbourne Customer Service Officer role was the same position as Westpac Teller role.
The role descriptions included tables headed, ‘Individual Risk Goals’, ‘Individual Performance Goals’ and ‘Performance Essentials.’ Everything was the same except for the headings, one which was Customer Service Officer; the other was Teller. The role description do not appear like job descriptions setting out duties, but included performance measures.
Mrs Tuyau replied on 23 May 2024 to say that the Performance Framework Library documents did not have specifics of the job descriptions. Mr Whitford then replied with a health and safety wellbeing document, that was headed ‘Customer Service Officer / Bank Teller.’
On 24 May 2024, Mrs Tuyau replied, “Thank you for sending this through.”
Both Ms Carre and Mr Whitford provided in evidence a document headed “Teller/Customer Service Officer.”[3] This document does appear to be a job description including key responsibility, salary, reporting lines, career pathways into and out of the role as well as what hiring managers look for. This document was never provided to Mrs Tuyau.
On 14 June 2024, Mrs Tuyau met with Ms Parkin, Pakenham Branch Manager, who gave her a letter dated 2 May 2024 that was headed, ‘Notice of Redundancy’. Mr Whitford said that he had asked Ms Parkin to give that letter to all affected staff in a telephone conversation.
On 25 June 2024, Mrs Tuyau and Ms Parkin spent a day at the Westpac Pakenham Branch, which is about 300 metres away from the Bank of Melbourne Pakenham branch. The Bank of Melbourne branch is inside a shopping centre, whereas the Westpac branch is outside on the main street. Mrs Tuyau agreed that they are a short walk from each other.
Mr de Zilwa gave evidence that he dropped into the Bank of Melbourne Pakenham branch to speak with and reassure staff about the closure. He had also made arrangements with Ms Parkin for staff to attend the Westpac Pakenham branch before moving across. Mr de Zilwa also gave evidence that he had worked with Mrs Tuyau in the past and had spoken with her about the Westpac teller role. He said,
“I reassured Ms Tuyau that I had been in her shoes, moving across to a Westpac role from a Bank of Melbourne role, and reassured her that there are a lot of familiarities between the two and she would be supported in the process.”
Mrs Tuyau’s evidence is that she observed 3 tellers and their interaction with customers. She said that the only similarity in the roles was use of an internal transaction system and use of the same intranet.
On 27 June 2024, Mr Whitford emailed Mrs Tuyau a letter with the subject, ‘Confirming your role.’ The letter confirmed that Mrs Tuyau was appointed to the role of Teller at Westpac Pakenham, which would start on 19 August 2024. The letter also said that her existing salary would continue to apply and all other terms and conditions of employment would remain the same. The letter further said that the role was directly comparable to the role she was doing prior to the branch change and that if she did not accept the role, she would not be entitled to a severance payment or vocational training under the enterprise agreement. Last, the letter referred to Mrs Tuyau receiving an offer letter via the internal employee HR portal so that she could accept the appointment.
On 10 July 2024, Mrs Tuyau received the offer letter via the internal employee HR portal. It contained a green ‘accept’ and a red ‘reject’ link. It also included ‘Transfer Details’ in 3 columns. The first column provided headings – Position; Department; Location; Office Location; Manager; Primary Brand; BSB Number and ‘Is 18 month term in role required?’. The next column was headed ‘Current,’ which detailed Mrs Tuyau’s role at Bank of Melbourne Pakenham. The final column was headed ‘Proposed,’ and detailed the Teller role at Westpac Pakenham.
Mrs Tuyau did not accept or reject the offer letter via the internal HR portal at that time.
Mrs Tuyau sent an email to Mr Whitford on 12 July 2024 seeking a meeting about the offer. She told Mr Whitford that she was about to go on annual leave and would return to work on 29 July 2024. Mr Whitford invited Mrs Tuyau to speak with him via Microsoft Teams (video-conferencing software) but she declined, stating that she preferred to have the conversation in person. In her email, she also said
“I am not in a position to “Accept or Decline” until we have had this meeting as I feel up until now, there has not been sufficient or adequate discussions in relation to this significant change.”
Mrs Tuyau then went on annual leave and returned as planned.
On 30 July 2024, Mrs Tuyau rejected the offer on the internal HR portal. She says reasons for her rejection was that the offer did not have enough detail to accept. Mrs Tuyau says it contained no information about salary, hours, rate of pay, or role description. She said it didn’t have “the information that [she] was looking for.”
On 1 August 2024, Mrs Tuyau met with Mr Whitford via Teams. Ms Parkin attended as Mrs Tuyau’s support person. Ms Kristin McManus, Team Assistant to Mr Whitford, also attended the meeting. During this meeting, Mrs Tuyau raised that she felt unsupported during the redundancy process and that decisions had been made without consulting her or her input. She said she felt she was being asked to accept a new job at Westpac without being offered support. She also said that her personal circumstances had not been taken into consideration. Last, Mrs Tuyau said that she felt that coming into the branch everyday was toxic for her. Mrs Tuyau felt that her concerns were not addressed by Mr Whitford during the meeting.
After the meeting, Mrs Tuyau went on sick leave and provided medical certificates to Westpac.
On 12 August 2024, Mrs Tuyau emailed Mr Whitford to ask what her options were once the Branch of Melbourne Pakenham branch closed. Mr Whitford replied to ask whether Mrs Tuyau was confirming that she would not sign the Letter of Offer or whether she wanted to know what the next steps were if she did not accept the role of Westpac Teller. Mrs Tuyau replied to say that she had already rejected the Letter of Offer but wanted to know “what happens next in both scenarios.”
Mr Whitford replied to say that they could re-issue the letter of offer for the Westpac Teller role, which could start on Monday 19 August. Mr Whitford also said that if Mrs Tuyau did not accept, then her employment would terminate as her role was redundant. He went on to say that Mrs Tuyau would be paid 4 weeks’ notice in lieu but would not be paid a severance payment under the Agreement. He also said that she had redundancy pay entitlements under the Act but that the employer could make an application to reduce that entitlement to nothing under s 120 of the Act and that Westpac would let her know “once a decision is made about that.” Last, Mr Whitford said that if Mrs Tuyau wanted to reconsider her decision to decline the role, the employer will give her time to do that.
Mrs Tuyau replied to say that she maintained her decision.
On 15 August 2024, Mrs Tuyau returned her branch keys and work phone, and emailed Mr Whitford to let him know that she had done so and to ask that future correspondence be sent to her personal email address.
On 16 August 2024, the Bank of Melbourne Pakenham branch closed.
In the afternoon of that day, Mrs Tuyau received an email from Allison Rickett, Senior Lawyer with Westpac’s application to the Commission to vary redundancy pay entitlement.
Westpac emailed a termination letter to Mrs Tuyau’s Bank of Melbourne email address on 16 August 2024 and re-sent that email to Mrs Tuyau’s personal email address on 23 August 2024.
Mrs Tuyau filed this application for an unfair dismissal remedy on 18 August 2024.
As at the date of the hearing on 12 November 2024, Mrs Tuyau had not obtained alternative employment.
On 21 November 2024, Deputy President Bell ordered that the redundancy payment that would have otherwise been payable by Westpac to Mrs Tuyau under s 119 of the Act be reduced to nil.
Relevant Law
Section 389 defines genuine redundancy as
(1) A person's dismissal was a case of genuine redundancy if:
(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer's enterprise; or
(b) the enterprise of an associated entity of the employer.
In order for a dismissal to be a genuine redundancy, 2 elements must be satisfied:
(1) The Employer must no longer require the person’s job to be performed by anyone because of changes in the operational requirements; and
(2) The Employer must comply with any obligation to consult about the redundancy in a modern award or enterprise agreement that applied to the employment.
Even if the above 2 elements are satisfied, it may nevertheless not be a genuine redundancy if the person could have been redeployed, in accordance with s389(2).
Did the Employer no longer require the person’s job to be performed?
It was not in dispute between the parties, and I am satisfied, that Westpac no longer required Mrs Tuyau’s job to be performed by her or anyone.
Westpac decided to close the Bank of Melbourne Pakenham branch at which Mrs Tuyau had worked since at least 2018 and perhaps earlier. Mrs Tuyau agreed that Westpac no longer required anyone to perform her job as Customer Service Officer at the Bank of Melbourne Pakenham branch.
Was there an obligation to consult?
The Westpac Group Enterprise Agreement 2023 applied to Westpac’s employment of Mrs Tuyau. Clauses 40 and 41 of the Agreement deal with ‘Changes in the workplace.’ Clause 40’s heading is When will I be consulted about changes? Clause 41’s heading is What happens if my role is redundant?
Only clause 40 creates an obligation to consult. The entirety of Clause 40 is appended at the end of this decision.
Clause 41 deals with the process for redeployment, and entitlements and payments on termination if retrenched, including notice, severance payment, accrued but untaken annual leave, accrued but untaken long service leave and superannuation.
Clause 40.1 requires Westpac to consult when it has made a definite decision to introduce a major change in production, programme, organisation, structure or technology and the major change is likely to have a significant effect. A significant effect includes termination of employment.
Clause 40.2 sets out the process and requires Westpac to discuss with employees or their representative the introduction of the change; the effect the change is likely to have and measure to avert or mitigate the adverse effect of the change. Clause 40.2 also requires Westpac to consider matters raised by employees, the Union or an employee’s representative.
Clause 40.3 requires Westpac to give an employee or their representative all relevant information about the change in writing. Clause 40.3 requires the information to include:
· the nature of the change,
· the name and location of impacted business units,
· anticipated reduction in FTE positions
· expected effects on employees; and
· any other matters likely to affect employees.
Clause 40.3 also requires Westpac to provide the above relevant information to the Union where the major workplace change involves an overall reduction in more than 5 FTE positions. Relatedly, Clauses 40.7 provides ‘timing commitments’ if Westpac is required to provide information to the Union. Clause 40.7 also requires that consultation will be for 10 calendar days where there is an overall reduction of 15 or more FTE positions.
Clauses 40.4 (regular roster or ordinary hours), 40.5 (appointing a representative), 40.6 (confidential information) and 40.8 (changes elsewhere in the agreement) are not relevant to this matter.
Clause 41 deals with the redeployment process. It defines the terms redundancy (which reflects the legislative definition in s 389), redeployment (being the process of exploring other roles within Westpac) and retrenchment (being termination of employment where there is no suitable alternative role or an offer is declined). It provides information about redeployment, including the period of time for the process being 3 months, or up to 6 months if an employee is returning from an overseas role. Clause 41.7 provides that there will be a case manager.
Clause 41.8 provides for redeployment to a directly comparable role, including what that term means. Clause 41.9 states that an employee who does not accept a directly comparable role will not be entitled to severance payment, notice (except as provided for under Clause 42 – notice of termination) or vocational training but may still be entitled to a payment under the National Employment Standards.
Clauses 41.10 to 41.13 deals with redeployment to a non-comparable role and clause 41.14 deals with relocation expenses if an employee is redeployed to another location.
Clauses 41.15 and 41.16. Deals with retrenchment Closes 41.17 and 41.18 deal with notice. Clauses 41.19 to 41.30 deals with payments and entitlements including preserved arrangements.
Clause 41.31 provides that Westpac may pay less then any NES severance payment if they have obtained acceptable alternative employment and that they will inform the employee and the Union if doing so. Clause 41.32 provides that an employee may have at least 4 weeks to consider the terms and conditions of an offer of acceptable alternative employment.
Clause 41.33 deals with transfer of business and clause 41.34 deals with when redundancy arrangements will not apply.
I am of the view that only clause 40 of the Agreement creates an obligation on the employer to consult about the redundancy. Clause 41 deals with redeployment, including obligations to provide information and allow periods of time for the employee to consider that information. Clause 41 does not create any obligation to consult about the redundancy.
Did Westpac consult?
There is no dispute that Westpac was required to consult because it had made a definite decision to introduce a major workplace change that was likely to have a significant effect on Ms Tuyau and other employees. Clause 40.2 requires that Westpac must consult “as soon as practicable after making a definite decision.”
Both Ms Carre and Mr Whitford say that Westpac made a decision “in early 2024” to permanently close the Bank of Melbourne Pakenham branch.
The first date that Mrs Tuyau learned that the Bank of Melbourne Pakenham branch would close was on 18 April 2024. This is the date that Mr Whitford visited the Pakenham branch and told staff during a meeting about the closure. At the team meeting, Mrs Tuyau and other affected employees were provide with a 12-page document titled, “Branch Employee Consultation.”
Neither party made arguments about whether the commencement of consultation was as soon as practicable after the definite decision was made, and Mrs Tuyau did not complain of this. If anything, Mrs Tuyau was concerned that the period of consultation from April 2024 until the branch closed in August 2024 was too long and caused her stress as a result.
I find that Westpac, in commencing its consultation on 18 April 2024, did so as soon as practicable after it had made its definite decision in early 2024.
Westpac was obliged by clause 40.2 and 40.3 to provide information in writing and to discuss the change. It did so in the meeting of 18 April 2024, at which Mrs Tuyau was present, and in the document titled, ‘Branch Employee Consultation,’ which Mrs Tuyau received during that meeting. The information it provided was detailed and dealt with the reasons for the change, nature of the change, impact on employees and customers, the roles that would be affected by the redundancy and timeline for the consultation period including the redeployment period. The document also provided avenues for providing feedback and information about the type of support available including the HR service centre and policies and the employer’s coaching and counselling services.
While there was the general invitation to provide feedback, Westpac also sought feedback directly from Mrs Tuyau, predominantly about the redeployment options. This was done in emails from Mr Whitford to Mrs Tuyau from mid-May until mid-August, including after she had rejected the offer of redeployment to Westpac Pakenham on 30 July 2024.
I permitted Westpac to provide me with evidence after the hearing that it had complied with its obligations to inform the Union about the major workplace change as required in 40.3. I am satisfied that it complied with its obligations in this respect.
Mrs Tuyau’s key challenge about whether Westpac had consulted with her about the redundancy was that Westpac had failed to provide her with sufficient information in order for her to properly consider the redeployment offer. She also challenged that Westpac had provided her with any options or any choice, and while she acknowledged that she had been informed of certain matters – such as training – she says there was a presumption that they would happen but they were never discussed. Mrs Tuyau felt that she was not offered any choice in the matter.
I find that Westpac complied with its obligations to consult with Mrs Tuyau about the redundancy. It provided her with detailed information about the nature of the change, the affected business units, the expected effects of the change and other matters that were likely to affect her within the Branch Employee Consultation document provided to Mrs Tuyau on 18 April 2024.
While I do not consider that clause 41 about redeployment were obligations to consult within the meaning of s 389(2), much of the evidence and argument was addressed to this, so I will deal with it. I am of the view that Westpac complied with its obligations under the enterprise agreement about redeployment. Although Mrs Tuyau complains that she was not provided with sufficient information to make a decision, she ultimately chose to reject the offer on 30 July 2024, which was before she met with Mr Whitford on 1 August 2024 to discuss it further. Mrs Tuyau and Mr Whitford engaged in an exchange of correspondence about Mrs Tuyau’s options. It may have allayed Mrs Tuyau's concerns if she had more opportunities to have discussions with Mr Whitford, but the evidence provided to me appears to demonstrate that Westpac sufficiently engaged with Mrs Tuyau about the redeployment.
In response to my question, Mrs Tuyau confirmed that what she was seeking was something like the detailed employment contract she received in 2015. For its part, Westpac had formed the view that it was offering her the same position, in a branch in effectively the same location but simply at a different ‘brand’ – Westpac, rather than Bank of Melbourne. The information that Westpac provided indicated that the roles, hours and other terms and conditions would be the same. While it did not go into the detail Mrs Tuyau required, the information was tolerably clear that Mrs Tuyau’s terms and conditions would remain the same in the offered role as in her current role.
Conclusion about ‘genuine redundancy’
I am satisfied that there was a genuine redundancy within the meaning of s 389 of the Act as Westpac no longer required anyone to perform Mrs Tuyau’s job at Bank of Melbourne Pakenham due to closing the branch. Westpac did have an obligation to consult in accordance with Clause 40 of its enterprise agreement, and I find that it complied with its obligations.
Section 389(2) provides that a redundancy is not genuine if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer. This exception is not relevant because Westpac did attempt to redeploy Mrs Tuyau but she rejected that offer of redeployment which ended her employment.
Was the dismissal harsh, unjust or unreasonable?
I have found that the dismissal was a case of genuine redundancy which means that it cannot be an unfair dismissal within the meaning of section 385 of the Act. I will nevertheless briefly deal with whether the dismissal was harsh, unjust or unreasonable as I required the parties to provide me with material and submissions in relation to this consideration.
Section 387 of the Act sets out the matters to be taken into account in considering with a dismissal was harsh, unjust or unreasonable.
387(a) – I have found that the employer’s reason for dismissing Mrs Tuyau was redundancy due to closure of the branch. This is a valid reason.
387(b) – Mrs Tuyau was notified that her employment may terminate and the reason for that termination on several occasions. She was first notified on 18 April 2024 when she was notified of Westpac’s decision to close the branch, the redeployment process and the consequences of not accepting an offer of redeployment. Westpac also notified Mrs Tuyau of this reason in a letter dated 2 May 2024 and headed ‘Notice of Redundancy.’ This letter was provided to Mrs Tuyau on14 June 2024. In this letter, Westpac said, “Unfortunately, you won't be entitled to a retrenchment payment if you decline a directly comparable role.” Last, Westpac notified Mrs Tuyau in an email from Mr Whitford to her on 12 August 2024. This email said, “If you decide not to accept the offer your employment will terminate on the basis your role is redundant and you have declined a directly comparable role.”
387(c) – I find that Westpac gave Mrs Tuyau an opportunity to respond to the potential dismissal. This is because on 12 August 2024, after Mrs Tuyau had declined the role, Westpac informed her of the consequences, which included that she would not be entitled to severance pay and that they may make an application to the Commission to reduce the amount of NES redundancy entitlement to nil, and invited her to reconsider her decision to decline. Mrs Tuyau replied one hour later to say that she maintained her decision.
387(d) – I find that Westpac did not unreasonably refuse to allow Mrs Tuyau to have a support person to assist at any discussions. Mrs Tuyau rejected the offer of the alternative role at Westpac Pakenham on 30 July 2024. She had been made aware prior to this date that the consequence of that rejection was that she would not receive a severance payment and that her employment would end. A meeting was arranged on 1 August 2024, at which Mrs Tuyau was present with her support person, Ms Parkin. Also present were Mr Whitford and Kristin McManus, Team Assistant to Mr Whitford.
Section 387(e) is not relevant as the dismissal did not relate to any unsatisfactory performance by Mrs Tuyau.
I am of the view that sections 387(f) – size of employer and 387(h) – impact of absence of human resources management specialist or expertise are not relevant to this matter. Westpac is a sizeable business, with human resources expertise available to it.
Section 387(h) relates to any other matters that the Commission considers relevant. I am of the view that Westpac engaged in a lengthy consultation process about the redundancy and Mrs Tuyau cannot reasonably argue that the dismissal came as a surprise or without warning.
Having considered the factors in s 387, I am of the view that even if the dismissal was not a case of genuine redundancy, it would not have been harsh, unjust or unreasonable.
Conclusion and Order
For the above reasons, I find that Westpac’s dismissal of Mrs Tuyau cannot be an unfair dismissal as it was a genuine redundancy. Westpac no longer required Mrs Tuyau or anyone to perform her job, and complied with its obligation in the Westpac Group Enterprise Agreement 2023 to consult about the redundancy.
I order that the application for an unfair dismissal remedy under FWC matter U2024/9611 filed on 18 August 2024 by Mrs Maryanne Tuyau is dismissed.
COMMISSIONER
Appearances:
Maryanne Tuyau for herself
Timothy Frost HWL Ebsworth, with permission, for the respondent
Hearing details:
Tuesday
12 November 2024
Via Microsoft Teams
Final written submissions:
Thursday
28 November 2024
APPENDIX A
[1] Westpac Banking Corporation T/A Westpac [2024] FWC 3113
[2] See Order PR781471 issued on 21 November 2024.
[3] Attachment AC-9 of Exhibit R-3, being Ms Carre’s statement; Attachment SW-18 of Exhibit R-1, being Mr Whitford’s statement.
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